“There’s a lot of conversation about specific selective banning, but the core of the issue is one of transparency, accountability of executive action. If you look at the Standing Committee report, one of the key considerations [and TRAI has very conveniently looked at the selective banning part] was to create a database of shutdowns and to review those shutdowns. We don’t have data on internet shutdowns officially in the country. Now we’re coming in with app ban shutdowns. What’s going to happen there? Are you just empowering an executive to build on the various actions already taken? You’re arming them further,” observed a participant at MediaNama’s ‘App Bans and Network Fees’ event that took place in Delhi on August 10, 2023.
The speaker participated during the first session ‘Understanding issues with banning of specific apps’ which focused on the recent proposal by the Telecom Regulatory Authority of India (TRAI) to look at selective banning of online applications as an alternative to complete internet bans during public unrest situations. The panel discussion, moderated by independent journalist Aditi Agrawal, included speakers Jhalak Kakkar (Centre for Communications Governance), Maknoon Wani (Council for Strategic and Defense Research), and lawyer Samar Bansal.
TRAI’s recommendation to selectively ban communication apps in its recent consultation paper comes against the backdrop of a direction to the Department of Telecommunications by the Parliamentary Standing Committee to look into the possibility of selective banning of OTT services, such as WhatsApp, Facebook and Telegram during periods of unrest.
This article focuses on the key questions surrounding the objectives of internet shutdowns, selective banning as an alternative mitigation measure, the effectiveness of such bans and shutdowns, and the need for transparency in regulatory actions, by the panelists during the discussion.
Watch the complete discussion here:
MediaNama hosted this discussion with support from Google and Meta. CCAOI, the Centre for Communications Governance at the National Law University (Delhi), the Centre for Internet and Society, and The Internet Freedom Foundation were our partners for this event.
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Are internet shutdowns justifiable? With reference to a Parliamentary Standing Committee report of 2021, which pulled up the Department of Telecommunications (DoT) for not establishing causality between internet shutdowns and impact on public order, Agrawal kickstarted the discussion by asking whether there are any circumstances under which internet shutdowns can be justifiable. Bansal observed that it’s unreasonable to say that there can never be a scenario where a government shouldn’t be allowed to carry out a ban.
“The test has to always flow from the lodestone, which is the constitution. Our constitution is a constitution of rights, not a constitution of restrictions. And therefore, the first thing you begin with is while we always talk of 19(1) giving us all of our fundamental rights, and we talk of 19(2) giving restrictions. Therefore, what’s important is that there is a fundamental right now in Anuradha Bhasin, which has been held, that to conduct business and commerce and discussions over the internet is a fundamental right. Banning selectively or otherwise is obviously a restriction thereon,” Bansal explained.
Talking about the constitutionality of the bans, he stated that purely from a constitutional lens, banning is not always bad given that Article 19(2) says a “reasonable restriction” is permissible.
What is a reasonable objective to ban the internet? Bansal noted that there is a gulf between what’s defined in theory and what’s in practice. For example, in the Anuradha Bhasin judgment and others, the court laid down tests of proportionality, and tests of least intrusive methods of imposing a restriction. But, according to Bansal, in practice, policymakers are grappling with difficulties of responding to “emergent scenarios”, while courts when faced with judicial challenges are not always meeting the issue head-on in testing whether such orders pass the test of proportionality. There must be a “cold-blooded forensic application” of the tests laid down in Anuradha Bhasin and other judgments to see whether a particular ban is constitutional and is the least intrusive method.
Bansal explained, “…the orders must have reasons, the orders must speak. Therefore there must be a close scrutiny… The amount and the strictness of judicial review and the strictness of scrutiny of a governmental action must be directly proportionate to the impact it has on the citizen and therefore, the higher the impact on the citizen, the graver and deeper and stricter the level of judicial review.”
Kakkar added, “…the judiciary has also let us down over here by not engaging with questions of proportionality and the vague terms like national security, public order, etc. need to be interpreted in the context of app bans or internet shutdowns, how to deal with questions of social strife within our constitutional structure and they have sort of sidestepped those issues constantly.”
Need for data-driven assessment of the effectiveness of bans: There are no publicly available studies by the government on the impact of internet shutdowns in attaining the objectives for which the ban was ordered in the first place, for example, curbing misinformation, restoring peace, or even preventing cheating in examinations. MediaNama Editor Nikhil Pahwa had an interesting question on whether an internet shutdown has led to a reduction in violence in any instance. Bansal commented that while there may not be mathematically precise answers, there are other ways to judge the outcome of a ban, which must stand out as a factor in deciding whether a particular approach was effective or not.
One such approach, he suggested, can be an analysis of internet shutdowns as well as app bans. For example, in the case of Manipur government’s publicised internet shutdown orders which, Bansal mentioned, contained a “boiler-plate language”, one can point out that the spread of misinformation and disinformation certainly becomes one factor for imposing such bans.
“These [reasons to ban internet] are multi-dimensional, multi-factor things, but in that multi-factored approach and analysis, they [government] would know that look, we had sought to achieve, let’s say a 10% difference, or a 15% difference, did you achieve that? Maybe you did, maybe you didn’t…that data-driven approach should be there versus a countervailing analysis [of] the deleterious effects of this ban on other people?…So, therefore, in these negotiations with these larger players, the actual impact would come into play. Governmental inertia is typically to continue doing what they have always done…there will always be an attempt to adhere to as few of the processual checks and safeguards as possible. And that’s where the courts step in and have stepped in to a certain extent,” Bansal explained.
For example, he explained, “There was a certain situation on the ground. Your analysis was that one of the major factors in fomenting the problems was the massive spread of disinformation. Now, your solution was that by issuing the ban, now the misinformation is going to be substantially stopped because now communication has become harder. 10 days, 15 days, 20 days into the ban, surely you have people on the ground collecting data, have alternative, have the people who were spreading misinformation shifted to apps you didn’t ban. You can check that at a network level, at the OTT level, etc. You can check what has been the amount of violence that the districts that were struck by violence has that even gone down by certain percentage.”
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Issues with selective banning: While discussing the effectiveness of selective banning of applications, discussants raised questions about the use of smaller apps that remain untraceable, unlike WhatsApp, which can still be used by notorious actors. To which, Kakkar stated that a detailed study of impact of bans is prerequisite to understanding whether people are migrating to smaller apps. She added that if the value of a social media app is centered on network effects and if spread of misinformation is one of the major concerns, then use of smaller applications that don’t have those kind of network effects or reach in a region, might won’t matter to a great extent.
“But if, concerns are different, and it’s about stifling the ability of bad actors to communicate with each other, perhaps it will have an impact, but probably those bad actors will find a further application that’s beyond something the government knows to exchange communication…if you want to get even more targeted, we have to understand what is the implication of maybe shutting down certain actors or nodes within social media platforms. That has serious freedom of speech and expression concerns, but if we are talking about proportionality, I mean, we would even have to start going to that level of granularity,” Kakkar highlighted.
Further, she also stated that such measures will also lead to questions of discriminatory bans, the due process, how are these decisions being made, who’s making these decisions. The discriminatory application of bans will lead to targeting of certain marginalised groups staying in a particular location.
Regarding misuse of platforms for fomenting trouble, Wani commented that misinformation will only work when there are significant number of people to whom such information reaches. “…it’s not about banning all the communication apps, it’s just about banning some significant players so that the misinformation does not work, or as the other side might claim, narrative control might work,” he added.
Need for accountability and transparency in executive action: A discussant pointed out that the Parliament Standing Committee had recommended that the government must maintain a database of internet shutdowns, to which the Ministry of Home Affairs and DoT had said that they are not creating such a database. The speaker was of the view that while discussing selective banning is important, “accountability and transparency in the executive action” needs to be re-emphasized consistently.
Kakkar added that the DoT in its response to the Standing Committee had stated that they do not have information from the state governments. “…[I]t’s not impossible for them to do that, they have NCRB data, et cetera, that they collate from state governments. There are no review committees at state levels around 69A. Not all states have review committees which then begs to the question of why we have boilerplate templates because that capacity to engage and understand this at state level may not be there. And if we talk about selective banning of apps, the question that will arise is if the state government doesn’t have the capacity to make those decisions, how are they going to know which apps to ban or block in a particular situation versus not and it all begs questions of transparency due process, decision making being available for scrutiny,” Kakkar added.
A speaker in the audience made an important observation that irrespective of whether selective banning is feasible or not, institutional intent, objectives, capacity of the government, and questions of accountability are what matter. “…what we do want is clearly laid out principles, whether it is in our regulatory orders or in industry orders, whether it’s in court orders or government policy making, we want them to specify clear objectives so that a competent court or a competent regulator can interpret them. So, that is why we have a very high stake in institutional capacity and institutional autonomy, which unfortunately is something that we are struggling with,” the speaker added.
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